Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers

MARCUS, Before HULL and Circuit TOTENBERG,* Judges, and District Judge.

MARCUS, Judge: Circuit case, complex this environmental plaintiffs Black Riverkeeper Warrior and Defenders of appeal Wildlife from the dis- grant summary trict court’s of final judg- Army ment to the Corps Engi- neers, as well as to the Alabama Coal Association mining companies, and several which intervened in the proceedings be- Riverkeeper challenges low.1 (“NWP version of Nationwide Permit * Amy Totenberg, Engineers, Honorable United States Dis- and "the the Ala- Intervenors” for Judge trict for the Northern District of Geor- mining compa- bama Coal Association gia, sitting by designation. nies. sake, simplicity's 1. For we will use "River- keeper” tions, plaintiff organiza- to refer to both Corps” Army Corps "the for the U.S. 21”), Court, general permit that allows surface ment in this admitted mining operations discharge coal that it had underestimated the acreage of dredged navigable or fill materials into waters would be pro- affected Riverkeeper essentially argues jects waters. authorized under Nationwide Permit Corps arbitrarily capriciously 21. In the face of this new potentially significant facts, found that NWP 21 would have no more change in the we ordered effects, than minimal environmental in vio- the parties provide supplemental brief- lation of both the Act ing implications Clean Water and the Corps’ on error. Policy National Environmental Act. then conceded that the district court’s decision must be reversed The district first determined that matter remanded to for further standing has to sue in federal consideration based on more accurate injury court because its members suffered assessment of potential Corps’ as a result of the decision to enact 21. agree. NWP We agree that Riverkeeper We has standing, remand, affirm and so the district court’s On the Corps shall reconsider point. decision this The district court conclusion the environmental im- was, that Riverkeeper’s pacts also held lawsuit of NWP are minimal in light of all nonetheless, equitable data, barred doc- of the relevant including review, trine of laches. After thorough recalculated figure acreage for the of wa- however, we conclude that the Intervenors ters affected NWP 21. expect We delay have shown neither inexcusable on it will Corps longer take the no than one so, part prejudice year and, therefore, nor re- to do remand this sulting Riverkeeper’s alleged delay. from case to the district court with instructions Riverkeeper lagged To the extent that in to remand the matter to the Corps, and to suit, filing delay was slight and excused determine whether may further relief by adequately its need to investigate required. and be prepare its complex claims this case.

Moreover, I. the Intervenors’ modest show- harm, ing only highest stated at the This case involves several complex statu- abstraction, order of outweigh does not tory regulatory designed, schemes potential environmental benefits of allow- measure, substantial to ensure that We, ing Riverkeeper proceed. there- government federal thorough conducts a fore, hold that the district court abused its assessment of the environmental impacts in barring considerable discretion River- Thus, § of its actions. 404 of the keeper’s suit. (“CWA”), Clean Act Corps may Water As for the merits of Riverkeeper’s permits envi- issue for the discharge dredged claims, ronmental the district navigable court con- or fill material into waters. 33 cluded, deliberation, (2012). thorough § after permits U.S.C. These can determinations that NWP 21 take the form permits, of either individual 1344(a), only § would have “minimal general permits, cumulative ad- or which au- environment, pursuant verse effect” on the categories thorize certain of discharges on Act, state, to the significant basis, Clean Water and “no regional, or nationwide environment, 1344(e). impact” pursuant § on the issuing general Before per- Act, mit, however, the National Policy Environmental the Corps provide pub- must arbitrary were neither capricious. nor lic notice an opportunity hearing. for a However, literally on the eve of'oral argu- Id. The also must determine that seams, coal permit ways. underground authorized are To reach the activities nature, mining operations dig surface must only will cause minimal “similar soil, through and a mixture of remove per- adverse environmental effects when rock, commonly and coal residue referred separately, and will have mini- formed “overburden,” replaced to as which is once adverse effect on the envi- mal cumulative the coal has been extracted. Excess over- determining In ronment.” Id. whether the deposited somewhere burden must be a general permit environmental effects of occasionally filling burying or minimal, must consider a will be else— streams, larger or in the form of a much relating impact range of factors fill,” “valley exactly which is what ecosystems discharges aquatic cases, sounds like. other the coal seam them, and must then humans who use itself, runs underneath the stream and the the environmental effects of the document operation through” will “mine the stream. permit authorized 'in a activities Mining operations generate also and dis- generally document. See decision charge material when create sedi- (2014). pt. C.F.R. roads, ponds processing ment and build obligated comply The is also plants, mining and other infrastructure. Policy National with the Environmental mining process, drainage As result of the (“NEPA”). NEPA, turn, requires Act site, from the which contains sub- Impact an Environmental Statement sediment, salt, stantial amounts of any “major significantly Federal action[] metals, can into seep and contaminate quality of the human environ- affecting larger waterways. may This runoff con- ment,” per- can include nationwide tinue for decades after the mine has Corps. issued 42 U.S.C. mits The fill discharge dredged closed. 4332(2)(C) (2012);- § C.F.R.- material, therefore, may have conse- 330.5(b)(3)(2014). agency pre- first quences quality for water and the health of Assessment, pares an Environmental aquatic ecosystems throughout the entire essentially a preliminary which is account watershed. proposed effects of a of environmental Corps long struggled The has to ensure 1501.4, §§ 40 action. See C.F.R. 1508.9. impacts that the environmental of surface suggests If the Environmental Assessment mining operations are minimal. Nation- likely that the effects of the action are 1982, wide Permit 21 was first issued in see agency significant, must issue the Regulatory Interim Final Rule for Pro- Impact more detailed Environmental grams Corps of Engineers, of 47 Fed. 1501.4(c). § Statement. See id. Other- 31,794,31,833 22,1982), Reg. (July and has wise, Finding a of Significant issues No subsequently been amended and reissued 1501.4(e). Impact. Id. multiple times. The 2007 version did not challenge This case involves a to Nation- place any length limits on the of streams 21, general permit by wide Permit issued by that could be filled authorized activities. It the.Corps. “[djischarges authorizes of Permits, See Reissuance of Nationwide 72 dredged (Mar. or fill material into waters of the 11,184 2007). 11,092, 12, Fed.Reg. United States associated with surface coal Corps eventually The became concerned mining operations.” and reclamation Reis- that activities authorized NWP 21 were Permits, of suance Nationwide 77 Fed. resulting greater environmental (Feb. 2012). 10,184, 10,274 Reg. Sur- than and it anticipated, suspended NWP mining discharge face coal involves the of 21 Appalachian Region states in the six Ohio, dredged variety Kentucky, Pennsylvania, or fill material in a of in 2010:

1277 Tennessee, Virginia. thered reauthorizations Virginia, paragraph and West (a). Permit of Nationwide Suspension (June 2010). 34,711, 34,712

Fed.Reg. Along permit, with the revised 21 in suspend did not NWP The Corps issued NWP Decision Docu- Alabama, Environmental Pro- although the explaining ment the rationale behind its in a subsequently stated Agency tection revisions, Corps’ which included the Clean con- that “the same letter Act and National Environmental Water brought about the Policy analyses. Specifically, cerns and science that Act concluded, CWA, required by appl[y] to the coal suspension six state that activities authorized NWP of The 2007 NWP fields Alabama.” would not have more than minimal cumula- 18, 2012. Reissuance of expired on March tive adverse effect on the environment. It Permits, 11,- at Fed.Reg. Nationwide concluded, NEPA, pursuant also 092. significantly NWP would not affect the Corps adopted a new course environment, and that an Environmental intended, in the con- part, “address[] Impact Statement would therefore not be previous suspension cern that led to of [its] (a) required. paragraph Under Appalachian 21 in the six states.” NWP 21, forty-one projects 2012 NWP have Permits, 77 Reissuance of Nationwide Fed. been reauthorized within the Black Warri- result, 10,205. Reg. at As a the 2012 watershed; or River the first reauthoriza- 21, which authorized version of NWP granted May tion was while the stream-filling operations for an additional granted April last was in either March years, largely consisted of two new five grandfathered portions The 2013.2 First, (a), paragraph provisions. projects filling ap- these authorize the grandfathering provision, twenty-seven functions as a of stream. proximately miles operations reauthorization of allows case, plaintiffs this Black Warrior previously which were authorized under Wildlife, Riverkeeper and Defenders 21, subject to verification strongly disagree with the environ- engineer a district will contin- analysis. impact mental ue to cause minimal adverse effects. groups Defenders are environmentalist 10,274. operations, Id. at As for new how- whose members use waters of the Black (b) ever, paragraph specific adds several River watershed that flow down- Warrior activity, stream-filling including limits on stream from sites authorized to requirement discharges “must not Ac- discharge material under greater than cause loss 1/2-acre cording Riverkeeper, projects to these States, in- non-tidal waters of the United quality effect on the profound have had a cluding the loss no more than 300 linear within the Black of the waters Warrior feet of stream bed.” Id. Permitted activi- Riverkeeper’s River watershed. members may observed, ties also not involve the construction example, have for that waters valley provided fills. The new limits discol- mining Id. downstream from sites are (b) by and clouded with sediment and silt. paragraph apply grandfa- do not ored court, According 2. even enacted to the district the final before the 2012 NWP 21 was by Corps April (December 2012) reverification was issued the and contradicts the date However, 2013. the document cited listed on the reverification letter for the mine district court does not list a reverification in difference, ultimately, question. does 2013; April April it instead lists one in analysis. not affect our likely which is an error since this was well claim, quality, they (2) water Impaired ten-year term; has ful permit aesthetic and recre- Corps’ “decrease[d] [their] analysis cumulative effects enjoyment, opportu- their reduce[d] ational arbitrary CWA was capricious and un- wildlife, and nities to observe cause[d] der the Administrative Procedure Act ingesting them concern about the water (APA), (2012); (3) 5 U.S.C. that the caught in the water.” and fish To take Corps’ issuance of reauthorizations in the just example, Riverkeeper alleges one that Black Warrior River pursuant watershed permitted several coal mines under NWP to arbitrary was capricious; 21(a) ultimately drain into the Locust Fork (4) Corps’ Finding of No River, Black releasing Warrior sedi- Significant Impact under NEPA was arbi- mentation, solids, and chemical com- trary capricious. pounds. Riverkeeper fears that what it later, Eight days Riverkeeper moved for resulting “dirty calls the or polluted wa- preliminary injunction to suspend all ter” will deter its members and others reauthorizations the Black Warrior Riv- using from the river for recreation —the er watershed. On December Locust Fork is one of the most popular Alabama Coal Association and min- several paddling Whitewater locations in the ing intervene, companies3 moved to citing state —as as harm well local wildlife. the harm that Riverkeeper’s requested in- forty-one In order to block the reauthor- junction would cause to their oper- 21(a) granted pursuant izations to NWP ations. Their motion to intervene was and therefore avert further claimed envi- granted objection without from Riverkeep- damage, Riverkeeper ronmental filed suit February er. At a hearing on River- District the United States Court for the keeper’s motion for a preliminary injunc- Northern District Alabama on Novem- tion, the district court refused to hear against Corps ber and several argument on the merits because River- gravamen officials. The Corps of River- keeper $300,000 could not post a bond. that it keeper’s lawsuit is was contradicto- The district court denied Riverkeeper’s ry impose for the stream-fill lim- February motion on then but, operations, new at the same summary moved for judgment on Febru- time, apply decline to those very same ary 20. At a hearing on March River- operations limits authorized the 2007 keeper voluntarily dismissed Count 3 of its subsequently reauthorized complaint, claiming that it longer was no put the 2012 version. To it slightly differ- directly challenging forty-one reau- ently, Riverkeeper’s argument is that the thorizations. On April filed rationally could not have found that its cross-motion for summary judgment, these new limits “necessary” were to avoid merits; addressing later, a week significant environmental impacts, and Intervenors filed their motion to dis- regardless then conclude summary judgment, ad- miss/motion grandfathered projects would be mini- dressing the merits standing as well as

mal. and laches. Specifically, Riverkeeper’s complaint (1) (a) raised four counts: that paragraph Ultimately, the district court concluded 21, effect, in amounts to an Riverkeeper unlaw- that standing, had but that its Pines, 3. mining companies LLC, Minerals, The Equip- are MS & R and Walter Inc. Co., Inc., Minerals, Inc., ment Reed Twin

1279 lach- injury-in-fact claims were barred the doctrine of between the asserted and the event, es, and, in that its claims failed challenged defendant’; action of the and rejected (3) The district court on the merits. ‘that the injury will be redressed by a ” argument that Riverkeep- the Intervenors’ favorable decision.’ Houston v. Marod standing challenge permit er lacks to Inc., Supermarkets, 1323, 733 F.3d 1328 404, Riverkeeper’s inju- (11th because Cir.2013) Cates, (quoting Shotz v. 256 ries, which result from diminished down- 1077, Cir.2001)). When, F.3d 1081 un- quality, cognizable stream water were case, as in this a plaintiffs injury arises § 404 and traceable to 21. der government’s from the allegedly unlawful did, however, district decide regulation of a party, third “much more is Riverkeeper’s delay filing suit was inex- 562, Lujan, needed.” 504 at 112 U.S. cusable, and that the Intervenors suffered plaintiff S.Ct. 2130. The must show that prejudice because acted reliance on choices will be made both regulator granted reauthorizations under NWP 21. regulated and the “in party such manner Finally, the district court concluded that produce as to permit causation and re- arbitrarily capri- did not act dressability injury.” Lastly, Id. a plain- ciously in concluding that NWP 21 would tiff brings who suit under the APA must no more than minimal have cumulative establish that injury-in-fact “falls within adverse effect on the environment. River- sought ‘zone of interests’ to protect- keeper timely appealed to this Court.4 statutory provision ed whose viola- tion legal forms the basis for his com- II. Fed’n, plaint.” Lujan v. Nat’l 497 Wildlife first, must, turn as we

We 871, 883, 3177, 110 S.Ct. 111 L.Ed.2d argument Riverkeeper Intervenors’ (1990). 695 court, standing lacks to sue federal showing addition to their Riverkeeper conclude that does indeed standing, Riverkeeper members have standing. have We review issues of stand organization Defenders must demonstrate State, ing Sec’y de novo. v. Swann standing. al “An organization has stand (11th Cir.2012). 1285, “Stand ing bring an action on its members’ ing jurisdictional is a inquiry, ‘party and a ‘(a) if behalf its members would otherwise invoking jurisdiction federal bears bur standing have to sue in their right; own establishing standing den’ of that he has (b) protect the interests seeks to are Fla., sue.” Am. Civil Liberties Union of germane Fla., organization’s purpose; Inc. Cnty., Dixie (c) (11th Cir.2012) neither the claim asserted nor (quoting Lujan v. De requested relief Wildlife, requires participation 504 U.S. fenders of ” (1992)). of individual S.Ct. 119 L.Ed.2d It members the lawsuit.’ Fla., Inc., by now Am. Civil plaintiffs hornbook law that “must Liberties Union of satisfy (quoting 690 F.3d at requirements three to have stand Hunt v. Wash. Comm’n, ing Apple under Article III of the Constitution: State Adver. 432 U.S. (1) (2) (1977)). ‘injury-in-fact’; ‘a causal connection 97 S.Ct. 53 L.Ed.2d 383 challenged complaint, solely ground has not the district on the that the dis- judgment grandfa- court’s on Count 1 that the Corps' trict court failed to consider the al- 21(a) provision ther of NWP does violate not error, leged differential treatment as well as 404(e) by extending Section the term of NWP judgment the court’s that the action is barred past years. Riverkeeper challenges five by laches. judgments the court’s 2 and 4 Counts of its challenge erkeeper’s they not or- that The Intervenors do members attest use ganizational standing Riverkeeper and' from mining waters downstream sites for event, Defenders, any purposes; and in such a chal- recreational and other that meritless, organi- as these lenge visibly would polluted; those waters are that the plainly standing have to assert the zations pollution of those waters decreases their claims of their members. The relevant them; enjoyment pollution and that has then, is whether their members question, impaired they habitats for wildlife like to standing. have study. Riverkeeper’s observe and mem- bers also claim that have been ex- grounded suit on a Riverkeeper’s is posed by to threats to their health drink- challenge procedural Corps’ decision ing using water from and affected areas. is, to issue Nationwide Permit 21. That injuries All fall of these within the zone of that Riverkeeper argues arbi by contemplated interests the CWA and trarily capriciously determined that NEPA, they allegedly since stem from en- in minimal NWP would result environ vironmental harm. alone, impacts. mental On this basis Riv- cannot claim erkeeper constitutional stand think argu do we serious Nor ing. “[D]eprivation procedural right of a against ment can Riverkeeper’s be made concrete without some interest is af standing grounds on the of causation or by deprivation—a procedural fected redressability. agree that plaintiff We right in vacuo—is insufficient to create prove injury need not their can be standing.” Article III Summers v. Earth specific pollution traced to molecules of Inst., 488, 496, Island 555 U.S. 129 S.Ct. alleged polluter. emitted It (2009). 173 L.Ed.2d To establish “ enough plaintiff that a ‘show that a de then, standing, Riverkeeper must show discharges pollutant fendant that causes adequately failure to con injuries or contributes to the kinds of al injured sider environmental harms River- leged’ specific geographic area of way. keeper palpable some Earth, concern.” Friends Inc. v. it, As we see and as the Copper Recycling Corp., district Gaston 204 F.3d (en concluded, Cir.2000) banc) properly Riverkeeper has (quoting Council, clearly injury-in-fact an shown within the Natural Res. Inc. v. Wat Def. kins, (4th Cir.1992)). ambit of the Clean Water Act and the 954 F.2d Policy National Environmental Act. alleged We has its members plaintiff may have held that an individual use areas from forty-one downstream injury-in-fact “by attesting stream-filling operations grandfathered show that he uses, or more frequently, would use an under the 2012 21. The Corps NWP also alleged affected area violations and indicated in its 21 Decision Docu that his aesthetic or recreational interests ment that activities authorized could, fact, aesthetic, in the very area have been harmed.” Sierra lead Auth., recreational, Valley v. Tenn. inju Club and other environmental (11th Cir.2005); see alleged by Riverkeeper—the Friends ries Earth, Inc. v. Laidlaw merely Envtl. Servs. concluded that those harms would (TOC), Inc., Likewise, 528 U.S. 120 S.Ct. be minor. vacatur of NWP 21 (2000). injuries; 145 L.Ed.2d 610 would Voluminous redress these surface min record evidence that Riverkeep ing operations required indicates would be either to (b)’s comply er’s members have suffered harm to their paragraph with stream-fill and recreational permits aesthetic interests. Riv- limits or obtain individual from the

1281 Indeed, Intervenors, cording Intervenors have not to the Corps. is file suit to § Riverkeeper challenge Corps’ has failed to meet permitting shown that 404 de- (inju- components traditional cision. any of these causation, redressability) of ry-in-fact, argument, We find this which operates standing inquiry. cramped understanding § on a of the 404 present permitting process,

The Intervenors instead a novel to be unconvincing. Congress plainly to the best of our argument which, Corps mandated that the — accepted by any has not been consider knowledge, quality downstream water when § injuries wholly issuing these are unt- 404 permit. court—that Section 404 itself develop raceable to the decision to issue a instructs the to guidelines They § permit explain upon comparable under 404. that “based criteria mining by § activities criteria” they engage surface established 403 of the Clean Act, 1344(b), actually require permits § under both 33 Water U.S.C. which no tably § § Act. disposal pol 4025 and 404 of the Clean Water include “the effect of drainage All from a site on human surface lutants health or welfare ... pass through pond must first a sediment marine life” as [and] well as “the effect of esthetic, being discharged disposal, pollutants before into downstream re [sic] creation[al], values,” discharge from subsequent waters. The and economic 33 1343(c)(1). pond by § must be authorized In response the sediment U.S.C. to this mandate, § permit independent- congressional the Corps and the 404(b)(1) § EPA ly imposes jointly promulgated effluent limits on the concen- Guidelines, pollutants. tration of The Intervenors’ which place very same em welfare,” argument sharp phasis thus draws a distinction on “human health or § permits, stability which take down- “aquatic ecosystems,” between and “re consideration, creational, aesthetic, quality stream water into economic values.” § § permits, principally which are 40 C.F.R. 230.10. The do not Intervenors minimizing argue concerned the actual authority with lacks the to physical quality, loss waters of United consider downstream water proposition The Intervenors claim that hard-pressed States. we would be proper Riverkeeper bring accept course for is to since we must to an agency’s defer interpretation a different lawsuit: one which either as- reasonable of a statute de mining operations fining jurisdiction. City serts that surface Arling See — ton, FCC, U.S.-, the Black Warrior River watershed have Tex. v. 133 S.Ct. - - (2013). 1870-71, § permits, violated their or that L.Ed.2d Rather, permits tight- terms of those should suggest the Intervenors do, improper ened. What cannot ac- would be for the to do so 1342(b). permitting § 5. Section 402 authorizes the Administrator of Section 402 decisions permit governed provided § the EPA to issue a for the release of are standards Act, any pollutant, except dredged § for the fill Water or Clean 33 U.S.C. granted authority § § material covered 404. 33 U.S.C. Alabama has been to ad- (2012); 1342(a)(1) (granting permit program, § see also au- minister its own Ala. Admin. (2014), thority "[e]xcept provided in sections 1328 Code r. 335-6-6-.01 and does so title,” through Department and 1344 of this the latter of which the Alabama of Environ- material). dredged Management. pro- with deals or fill It also mental Alabama law also apply right drainage pass allows states to to the EPA for the vides that all surface must permit programs through pond comply their administer own un- a sediment with supplant quality der which then state and federal EPA's water standards. (2014). permitting system approved. if 33 U.S.C. Ala. Admin. Code. r. 880-X-10C-.13 already Riverkeeper only not mean has stand- regulated activity cov- where ing challenge one failure and not the permit. §a But cite to ered otherwise, authority, judicial sup- Vacating NWP 21 would redress other. no merely injuries, a They Riverkeeper’s of claim.6 cite to whether or not port this § 402 by engineer might an other administrative action statement some regulat- injuries. is the “exclusive vehicle for permit also redress those quality.” water This ing downstream The two cases to have considered weight cannot the simply statement bear standing argument the Intervenors’ have standing. argument of the Intervenors’ first, rejected Kentucky it. In the River Midkiff, a keeper, Inc. v. district court Intervenors also fail to ex The the of addressed issues causation and re- § the distinction between 404 plain how in dressability, determined the injury- § permits 402 affects permits dustry “attempt intervenors’ to limit Plain causation, in-fact, redressability —the point tiffs’ members’ interests to the of standing. scope of of core elements discharge recognize fails to how the dis authority Corps’ regulatory the has no charge dredged of or fill materials bearing Riverkeeper’s on whether mem And, waterways.” F.Supp.2d downstream injury. as we see 800 bers have suffered 846, it, (E.D.Ky.2011), Riverkeeper’s alleged injuries are in 862 rev’d on other grounds Ky. § the zone interests of 404 and remanded sub nom. cluded within Rowlette, Inc. v. 714 402 implementing regulations, Riverkeeper, F.3d (6th Cir.2013). second, consider downstream water Kentucki expressly not quality. Army The zone-of-interests test “is ans Commonwealth v. U.S. for demanding.” Corps Engineers, another district court especially meant to be Ass’n, 388, rejected mining company’s argument 479 v. Sec. Indus. Clarke (1987). 399, 750, complain 757 that “because Plaintiffs about in 107 S.Ct. 93 L.Ed.2d juries Similarly, by by quality the distinction drawn the In caused downstream water injuries §§ impli impacts, between 402 and 404 their fall under the zone tervenors redressability. by §a 402 protected [National cates neither causation nor of interests most, Discharge System] that Pollutant Elimination At the Intervenors have shown § fill Riverkeeper’s injuries arguably permit permit.” stem from and not a 404 963 670, regulation F.Supp.2d (W.D.Ky.2013), two failure failures —a aff'd § under and a failure sub nom. Kentuckians the Common for Department Army Corps Eng’rs, Alabama of Environmental wealth v. U.S. (6th Cir.2014). § It Management under 402. But that does F.3d 698 determined 10-0541(ABJ), § rejected have Intervenors' under 402. No. 6. Other courts covered Corps' regulatory authority. view of the In El (D.D.C. Sept. 2014 WL at *19-20 EPA, Eighth Dorado Chemical Co. v. U.S. 30, 2014). Mingo Logan The facts of bear nothing Circuit concluded that text of here, strong similarity to those as it too dealt the Clean Water Act indicates that the Nation- discharges pass with from sites that Discharge System al Pollutant Elimination through 402-regulated § sediment basins. permit program "must be the exclusive means Id. at *19. While neither of these cases dic- protecting downstream waters.” result, persuasive; they tate our we find them (8th Cir.2014). Similarly, support underscore the lack of for the Inter- EPA, Mingo Logan Company, Coal Inc. v. U.S. §a venors’ claim that the existence of argu- rejected the Intervenors’ district permit strips authority somehow agency acting § ment that an under 404 lacks quality to consider downstream water authority qual- downstream water to consider ity regulated activity 404 well. whenever the is also plaintiff test should not serves to bar suit that the zone-of-interests “whose allowed, if narrowly delay, construed so unexcused the suit were be adequately alleged injuries had would plaintiffs prejudicial be to the defendant.” Todd, permitted opera- from the fill stemming Russell v. 309 U.S. 60 S.Ct. Id,.. (1940); tions. 84 L.Ed. 754 see Envtl. Def. Fund, Alexander, Inc. v. However, even if we were to hold that (5th Cir.1980) (“[E]quitable remedies are standing to Riverkeeper lacks sue under not if granting remedy available would (and not), Act do the Clean Water we we inequitable to the defendant because of argument not how Intervenors’ do see plaintiffs long delay.”).7 We review a standing un- Riverkeeper’s affects sue district court’s laches determination under Policy der the National Environmental an abuse-of-discretion standard. Peter required Act. The to determine Assocs., Letterese & Inc. v. World Inst. per- whether the issuance of a nationwide Enters., Int’l, 1287, Scientology 533 F.3d “major signifi- mit is a Federal action[ ] (11th Cir.2008). 1319 n. 38 To establish cantly affecting quality of the human defense, laches “[t]he defendant must show 4332(2)(C); § 42 environment.” U.S.C. 33 in delay asserting right claim, 330.5(b)(3). § analysis C.F.R. This turns delay was not excusable and that there “(i) on, among things, other the environ- prejudice was undue party against action, impact proposed mental whom the claim Ecology is asserted.” Ctr. (ii) any [and] adverse environmental ef- La., Coleman, 860, Inc. v. 515 F.2d 867 fects which cannot be avoided should the (5th Cir.1975). Applying standards, these proposal implemented.” 42 be U.S.C. the district court Riverkeeper’s found “de 4332(2)(C). § This broad in- language lay and, of 9-10 months to in be unexcused cludes in downstream diminution water fact, inexcusable.” The district court also quality caused un- activities authorized industry determined that the coal suffered 21, § der NWP whether or not 404 of the in prejudice expenditures the form of But, explained, CWA does. as we have grant made reliance on reauthorizations quality downstream water is relevant un- ed under Nationwide Permit 21. Accord der both 404 of the CWA and NEPA. ingly, the district court held that laches Thus, Riverkeeper we conclude that has Riverkeeper’s barred suit. standing pursue both its CWA and claims, and, therefore, NEPA affirm the thorough After review of the rec

district court’s on this point. decision ord, conclude, we are constrained to as a III. law, matter of that the district court’s deci turn next We to whether Riv sion on laches was an abuse of discretion.8 erkeeper’s outset, suit is barred Lach laches. At the we observe that the district sounding equity es is a defense court’s discretion is not unbounded. Dis- - Prichard, Inc., City 7. Metro-Goldwyn-Mayer, Bonner v. 661 F.2d v. Petrella 1206, (11th (en banc), Cir.1981) —, 1962, we 134 S.Ct. 188 L.Ed.2d 979 adopted binding precedent as all decisions of (2014), application bars the of laches to this the former Fifth Circuit handed down before join we case. Nor do decide whether to our 1, October 1981. suggesting sister circuits in that laches "must sparingly be invoked in environmental cases.” we Because hold that the district court Coal., Pierce, Pres. Inc. v. applying abused its discretion in the laches (9th 1982). Cir. factors, we need not and do decide not wheth Supreme er the Court’s recent decision in range Riverkeeper likely cretion means “that the has a standing Since lacked court issued, choice, until and that its decision will not those reauthorizations were Riverkeeper not brought could have suit long stays as it within that disturbed until, earliest, May at the when the by any influenced range and is not mistake Corps granted the first reauthorization. of law.” Ameritas Variable Ins. Co. Life Riverkeeper failing cannot be faulted for Roach, v. Cir. then, bring “[plain suit before because curiam) 2005) omitted). (per (quotation sleep rights tiffs cannot until such lightly We do not conclude the district rights come into existence.” Clark discretion, but must re abused (E.D.La.), Volpe, F.Supp. carefully view the record to determine (5th Cir.1972) aff'd, 461 F.2d 1266 (per application whether its of laches can rea curiam). But was also reasonable for sonably be sustained. February to wait until it, primary As we see the district court’s seeking when the deadline for reauthoriza- mistake lies not its calculation of how passed tions and a substantial number of long Riverkeeper delayed bringing this granted, reauthorizations had been so that suit, complex but in its conclusion that it could discover the full opera extent of Riverkeeper failed to show excuse for tions reauthorized NWP 21. This shor delay. agree Riverkeeper that We that period delay tens the of to some nine or brought could have suit once the first months, ten as the district court found. ' Corps. reverification was issued court, however, The district abused its Riverkeeper challenges procedural a flaw gave discretion when it no weight to River- in the of promulgation Nationwide Permit evaluate, keeper’s need to investigate, and 21, its cause action therefore ac of prepare its litigation. claims for Before February crued when NWP 21 court, Riverkeeper explained the district See, e.g., was reissued. Cedars-Sinai that it needed time to file requests FOIA Shalala, Med. Ctr. v. 177 F.3d analyze the documents it had received (9th Cir.1999); Reissuance of Nationwide from the Corps. opin The district court’s Permits, 10,184. But, 77 Fed.Reg. at concerns, ion makes no mention of these noted, deprivation a proce we’ve of mere plainly legitimate. which strike us as In right, injury, dural without does not suffice failing potential address these excuses standing point to create the Interve- —a delay, for the district court overlooked rel respect nors themselves stress with evant circuit precedent. Save Our Wet standing analysis in this case. See Sum lands, Army Corps Engi Inc. v. U.S. mers, at U.S. 129 S.Ct. 1142. neers, binding precedent, the former Similarly, we have held that where an weighed Fifth Circuit whether plain agency’s scheme requires site-spe further knowledge provided tiffs’ lack of an excuse scheme, cific implement actions to that a delay filing for their challenge suit to plaintiffs injury ripe is not until such ac real development project. estate 549 F.2d tions proposed. have been (5th Cir.1977). Wilderness The Court observed Alcock, Soc’y v. plaintiffs that “were to pre entitled Cir.1996). Corps actually Until the began. public sume that the responsible officials reauthorizations, to issue it was unclear approving for the [development] project “when Riverkeeper or how” in would be would act in accordance with the law.” Id. jured, underpinning and “this factual at It plain 1027-28. concluded that the full-fledged judicial vital to a rely review” of tiffs could not on their alleged lack of NWP 21. Id. at 390-91. knowledge given “publicity” of the de- Indeed, “public as well as the notice” of invocation of laches. the In- velopment, developer’s permit application, and “argument suggests tervenors’ that at applied. therefore held that laches Id. plaintiff challenging permit involving Similarly, another case immediately should file lawsuits as the Corps, the former Fifth Circuit said issued, permits are thoroughly without ex- government “the must show amining records, the agency’s permits by invoking those whom it seeks to bar and other information before asserting a laches were or should have been aware comply failure to with the requirements of questionable governmen- nature of the NEPA or the Valley CWA.” Ohio Envtl. Fund, Inc., activity.” tal Envtl. Def. Army Coal. v. Eng’rs, No. F.2d at 479. read these cases to indi- We 3:05-0784, CIV.A. 2006 WL at *2 that a lack plaintiffs knowledge cate (S.D.W.Va. 2006). Aug. investigate need to further can serve as Riverkeeper’s properly Once need to delay. reason for for, prepare litigation is accounted provided has sufficient rea- length Riverkeeper’s delay drops to a delay bringing son for its minimal this months at worst. few This is too slender a obliged pro- lawsuit. The is not reed on which to base a laches defense. public granted vide notice of authorizations applying Our in complex cases laches envi- general permit, under a see C.F.R. litigation ronmental generally have in- 330.5(d)(3), any suggestion nor is there delay volved a amounting years, to several in the provided. record notice was See, without e.g., reasonable excuse. Generally, Riverkeeper could not have dis- Fund, Inc., Envtl. 614 F.2d at 479 Def. filling operations begun covered that had (five Wetlands, years); to nine Save Our pursuant grants intruding to those without Inc., (nineteen 549 F.2d at 1027-28 months it, private upon property. As we see years); to two and a half see also Jicarilla patently Riverkeeper was reasonable for Andrus, 1324, Apache Tribe v. 687 F.2d requests to wait and then file FOIA to (10th (more Cir.1982) 1338 than three scope ascertain the the of reauthorizations Here, months, years).9 period of several 21(a) granted under NWP after the dead- during Riverkeeper actively was en- seeking line for reauthorization passed lawsuit, gaged in preparing its cannot con- February Afterward, Riverkeeper delay. stitute inexcusable to needed time review the fruits of its If requests prepare FOIA we case. Finally, we observe that River- to that a plaintiffs

were hold reasonable delay keeper’s six-year falls well within the fully to investigate need its claims does not delay, applies statute of limitations that to actions powerful excuse we would create a perverse plaintiffs against government. incentive for to file 28 U.S.C. 2401(a) see, (2012); premature Biologi- and even frivolous suits to avoid e.g., Ctr. for provided by Army Magurrewock, 9. The cases Inc. Intervenors Friends v. U.S. involving delays readily Engineers, substantially shorter are distin which relied instance, Creek, guished. For in Allens on the district court decision in Allens Creek/Cor West, Group, delay betts Glen Preservation Inc. v. the issue of arose in the context of a plaintiffs indisputably preliminary injunction, were well-informed rather than a laches issue, 365, (D.Me. project yet only F.Supp.2d about the wetlands at defense. 498 378 2007). Moreover, case, existing filed plaintiff suit after the wetlands had al in that ready Riverkeeper, present any been filled and construction was unlike could not ex 95% complete, nearly eight delay, months 2 Fed. [was] later. cuse for its the "record silent 162, (2d Cir.2001). Appx. why 164-65 And in it did not earlier.” Id. at 379. act Hamilton, 1331, Diversity cal v. 453 F.3d that might Riverkeeper fits result if is (11th Cir.2006) curiam) (“The (per pursue allowed to its claims. Save Our Wetlands, Inc., limitations, Act prescribes no statute of so Any 549 F.2d at 1028. general six-year statute of limitations harm demonstrated the Intervenors against for suits ap- specifically United States must stem Riverkeeper’s from Slater, plies.”); suit, delay bringing Sierra Club 120 F.3d rather than from (6th Cir.1997) (“It 623, appears consequences ... of an adverse decision on beyond merits, question six-year statute “prejudice does not arise 2401(a) of limitations of applies ‘merely section because one loses what otherwise ” APA”). brought pursuant actions he would have kept.’ Baylor Univ. Med. Heckler, copy- 1052,

As we have held the context of Ctr. v. 758 F.2d Cir.1985) infringement, Bohart, right strong pre- “there is a (quoting In re 743 F.2d (5th Cir.1984)). sumption plaintiffs timely that a suit if words, In other it is filed before the statute of limitations the Intervenors must establish that Assocs., Inc., has run.” Peter Letterese & were made significantly worse off because 533 F.3d at 1320.10 We do not mean to bring did not suit as soon as suggest that laches should “be determined it had opportunity para- to do so. The merely by a reference digmatic to and a mechanical example prejudice is when application of the statute of limitations.” expended defendant has substantial sums Co., v. Panama R. money Gardner 342 U.S. completed a significant (1951) 31, 72 S.Ct. 96 L.Ed. (per amount of construction the time the curiam). But, coupled with Riverkeeper’s plaintiff decides to file suit. Save Our Wetlands, investigate claims, 1028-29; need the fact that Inc. 549 F.2d at see Riverkeeper’s delay Tabb, was a Murray scant few also Reconsidering William leads us to delay months conclude that its Application Laches in Environmen- reasonable. was Litigation, tal 14 Harv. Envtl. L.Rev. (1990) (“[Cjourts have typically re- delay prejudice Inexcusable are investigations stricted their to whether necessary both elements of the defense of substantial resources have been committed laches, so our conclusion that Riverkeep- commenced.”). and construction has delay er’s was reasonable is sufficient to See, dispose of this issue. e.g., Howard v. The district court abused its discretion Inc., Roadway Express, when concluded that the bare and insub- (11th Cir.1984) (declining to discuss stantial allegations prejudice presented prejudice because of the lack by of inexcusa- outweighed the Intervenors the envi- delay). Intervenors, however, ble The ronmental allowing Riverkeep- benefits of have also failed prejudice. to establish In proceed. er to do dispute We not evaluating prejudice, we equi- “balance the might by Intervenors be hurt vacatur of ties,” weighing both the harm to the Inter- but inquiry NWP that is a different venors well as the altogether environmental bene- from they whether have been Petrella, Supreme 10. The holding Court’s plain- in se. The Court also indicated that the proposi- 134 S.Ct. does still, not disturb this delay "extraordinary tiff's could cir- only tion. Petrella copyright held that when a cumstances,” potential equitable limit their infringement legal suit seeks the relief of dam- Here, relief. Id. at 1977-79. ages, applicable and falls within the statute of relief, equitable seeks but its suit is not barred limitations, it is not barred laches. Id. at delay altogether laches because its was words, 1974. other such a lawsuit is not reasonable. merely presumptively timely' timely per is —it by Riverkeeper’s delay. weight hurt The district tle to this factor for two reasons. analysis First, affida- court rested its several if Riverkeeper prevails, the Interve- company vits from coal executives which nors’ operations proceed would un- state that the Intervenors relied on their general permit der a new or individual “purchase mining reauthorizations permits. But Riverkeeper would likewise workers, equipment, hire mine enter into challenge be able to these new schemes in contracts, various make commitments sales the event the failed to conduct a ... to customers or initi- [and] ] continue! analysis sufficient of their environmental development acquire! mine ] ] ate! Second, impact. the district court noted showing land.” But this was deficient that Riverkeeper’s argument on laches as- all, respects. several First of these affida- sumes the truth of argument on the vits, which were offered in support of the merits. environmental benefits of va- intervene, pre- Intervenors’ motion to are cating are “significant” if abstraction, very high sented at a order of Riverkeeper is correct that the er- and do not differentiate between the harm roneously concluded that the impacts of if Riverkeeper ultimately that would result would be minimal. Our cases merits, prevails on the harm that laches, however, applying have tended to from Riverkeeper’s delay. resulted To plaintiffs’ take allegations reasonable at example, take one the affidavit from face value in determining environmental Barber, George president of the Alabama Thus, benefits. example, Ecology Association, says injunc- “[i]f Coal Louisiana, Inc., Center we credited the plaintiffs tion that have requested is is- plaintiffs’ allegations highway that a pro- sued, ... severely will be [the Intervenors] ject “irreparable injuries” would cause prejudiced.” assuming Even these productive ecosystems some of the “most speak affidavits could to the harm caused on earth” in calculating prejudice. delay, Riverkeeper’s say would not (internal F.2d at quotation 868-69 marks very They specify much. do not the finan- omitted). any suggestion Nor is there companies cial hit the will take as a result that a significant percentage record delay, they provide any nor do further already filled, streams has been detail steps they during about the took mitigate Riverkeeper’s would claimed envi- Riverkeeper neglected time to file suit. ronmental benefits. id. at See Notably, in our cases that have barred suit laches, on the basis of we generally have say We cannot on this record that River- required specific much more and concrete unreasonable, keeper’s delay was or that figures money for how much has been the Intervenors significant have suffered spent project on a and how much of the prejudice delay. as a result of that We See, project completed. has been e.g., find, therefore, the district court Fund, Inc., 480; Envtl. 614 F.2d at Def. in barring abused its discretion Riverkeep- Wetlands, Inc., Save Our 549 F.2d at er’s suit on the basis laches. 1028-29. The district court also failed to credit IV. the environmental benefits that might re- Thus, allowing obliged sult from we are to address the Riverkeeper’s lawsuit to proceed.' question merits at Riverkeeper identifies over the center of this case: twenty-seven Corps’ miles of whether the Act streams that would Clean Water and be forty-one grandfathered Policy filled the National Environmental Act deter- projects. The district court arbitrary attributed lit- minations and capricious. were 1288 Inc., not, 281, 286, they Freight Sys., held that were Best 419 U.S.

The district court (1974), a holistic re- 447 Corps because the conducted S.Ct. L.Ed.2d “[w]e may supply Permit 21’s environ- not a basis for the view of Nationwide reasoned reasonably agency’s agency mental and concluded action that the itself has Farm, appeal, given,” be minimal. On not State at that would 463 U.S. Likewise, challenges single agen a error in we review an S.Ct. 2856. reasoning, cy’s Finding Significant Impact which it calls the of No and Corps’ the Riverkeep- prepare “differential treatment error.” decision not to an Environmental Statement, NEPA, argues arbitrary capri- Impact pursuant er that it was un conclude, Corps to on the arbitrary-and-capricious cious for the one der the same hand, 1446, 1450 new stream-fill limits con- Hill v. Boy, standard. (b) (11th Cir.1998). ultimately, then, of 21 are paragraph tained NWP Our task necessary significant agency to avoid is to “ensure that environmen- the took a ‘hard other, effects, consequences tal but on the to decline to look’ at the environmental of projects apply pursu- proposed them to reauthorized the action.” Sierra Club v. U.S. (a). 1209, 1216 paragraph question Army Corps of Eng’rs, ant to The core (11th Cir.2002). then, is the appeal, Corps this whether reasonably conclude that could NWP face, however, The problem we now whole, would have minimal ef- taken as that can’t Corps’ we evaluate whether the fects. CWA and NEPA determinations were ar- bitrary capricious We review the district court’s on this record. As recounted, grant summary judgment Corps decision to we have the admitted on argument and the Intervenors on the mer the eve of oral that it underesti- novo, applying appropriate its de while mated the number of acres of waters agency’s of review to the may impacted by Specifical- standard deci 21. NWP ly, Dep’t sion. stated that it “did not take Defenders of Wildlife (11th Cir.2013). 1106, 1114 Navy, 733 F.3d into account that activities re-verified un- (a) Act, paragraph impact Under Administrative Procedure der could more than we must “hold unlawful and set aside half-acre waters of the United States.” action, Nevertheless, agency findings, and conclusions the Corps hinted that arbitrary, ... capricious, might found to be an underestimate not affect its deter- discretion, abuse otherwise not mination that the environmental effects of with law.” In accordance 5 U.S.C. 21 would be supple- minimal. determining agency briefing, acted ar mental suggested whether also bitrarily capriciously, askwe whether that various features of the 2012 NWP agency the relevant data requirements “examine[d] such as its for individual re- satisfactory explanation compensatory articulate[d] verification and mitigation, for its action.” Motor Vehicle might Ass’n indicate that the error was Mfrs. U.S., Inc. v. State Farm Mut. Auto. though Ins. “harmless.” Even will Co., 463 U.S. aggregate S.Ct. affect more waters in the than (1983). Importantly, L.Ed.2d 443 “a Corps anticipated, require- these two judgment is not to substitute its of ments could function to ensure agency.” Id. “uphold impacts project While we should one will be matched a decision of than if clarity less ideal the with sufficient compensatory mitigation to agency’s path may reasonably be dis render the overall effect on the environ- cerned,” Transp., Bowman Inc. v. Ark. ment minimal. objects light admission, of the dissenting colleague Corps’

Our grounds that the Corps’ reasoning on the we are confident that the Corps has com shows that it failed Corps’ miscalculation review, mitted an error in its but we are impact” para- the “actual to consider unable to discern whether that truly error (a) She also ob- graph reauthorizations. significant.12 The bottom line is that we Corps subsequently that the admit- serves say cannot now that the Corps’ ultimate projections factual were an ted that its conclusion—that NWP will have mini of its cumulative im- “integral component” We, therefore, mal effects—was unlawful. it, analysis. Corps may the pact As we see proper believe that the course is to re that its factual well conclude remand mand the matter to the district court with projections were indeed so erroneous instructions to remand to Corps the for a compensatory individual reverification and full reconsideration of its CWA and NEPA that the cumula- mitigation cannot ensure remand, Corps determinations. On 21 on the tive adverse effect NWP should determine both effect of its Or, will be minimal. as the environment acreage underestimate of the of impacted “may readily to Corps suggests, it be able analysis, waters on its earlier as well as in explanation,” cure defect [this] it stands its overall determina whether original reaffirm its decision. Heartland tion that the effects of activities authorized Sebelius, Reg’l Med. Ctr. v. 566 F.3d cumulatively 21 will insignifi NWP (D.C.Cir.2009). analysis, Corps’ The cant. all, after based on a holistic account of was requirements stipu- all of the terms and to, compelled We are not nor will 21, including compensatory lated in NWP we, vacate 21 at this time and mitigation and individual reverification. incomplete face of this record. Whether a Corps The fact that underestimated may agency remand matter to an acreage of waters that would be im- vacating agency’s without action is a (a) pacted by paragraph does not necessar- question impression of first in our circuit. ily aspects undermine the other courts, “agree, We as have most other Corps’ analysis.11 long and short of it ... remedy of remand without vacatur record, is that we can’t tell on this limited reviewing powers is within a court’s equity we think it to leave the matter wiser the APA.” Ant analyze in Sierra Club Van to the district court to the first (11th Cir.2008) werp, instance. suggests Corps project individually 11. The dissent also thered will be reverified failed to take a "hard look” at the environ- no than minimal to have more cumulative consequences mental of NWP in violation required engage impacts and will be NEPA, however, of NEPA. "does not mandate compensatory mitigation any impacts' to offset perfection” preparing the documentation it that result. The contends that these Ass'n, requires. Druid Hills Civic Inc. v. Fed. requirements compensate spe- for the lack of Admin., Highway (a). paragraph cific stream-fill limits in As remand, Cir.1985). On should con- efficacy explained, we’ve re- individual Finding Significant sider whether its of No mitigation may compensatory verification Impact light is sustainable of the terms of comprehensive well turn on a more and accu- 21, regardless of its miscalculation. accounting rate of the effects of NWP 21. It premature would be for us to render a deci- alleged 12. We decline to address the "differ- sion on this issue without a sense of how the error,” except ential treatment to note that may miscalculation bear on its overall Corps' miscalculation of environmental Thus, analysis. point bears on this well. example, grandfa- asserts that each 1290 not, not,

(Kravitch, J., and do decide whether re concurring part in and dis need Plainly, part). in the federal senting permissible mand without vacatur is when to fashion possess broad discretion courts agency has erred to such an extent as See, remedy. e.g., Hecht Co. equitable an to indicate that its ultimate decision was 587, Bowles, 321, 329, 64 S.Ct. v. 321 U.S. unlawful. (1944) (“The equi L.Ed. 754 essence 88 deciding agency’s whether an action power has been the of the ty jurisdiction vacatur, a should be remanded without equity to do and to mould each Chancellor Indeed, equities. court must balance the particular to the necessities of the decree Appeals the United Court of for the States NLRB, case.”); Motor Co. v. 305 Ford developed District Columbia Circuit has 59 83 L.Ed. 221 U.S. S.Ct. (1939) (“[Wjhile determining an instructive test for when a act within the court must in vacating the bounds of the statute and without court should remand without province, the administrative truding upon agency’s action. That test considers “the exigencies may adjust its relief to the (and of the order’s deficiencies seriousness equitable in with the the case accordance thus the extent of doubt whether action.”). governing judicial principles agency correctly) disruptive chose and the Undeniably, “equitable vacatur is relief.” consequences change of an interim Alabama v. Ctrs. Medicare & Medicaid See for may changed.” Allied-Signal, itself be (11th vs., 1241, 1244 674 F.3d Ser Inc., (quotation 988 F.2d at 150-51 omit curiam). Cir.2012) The decision (per ted); v. see also Sierra Club Van Ant agency action falls whether to vacate with (Kravitch, J., at werp, 526 F.3d 1369 con equitable discretion. in our broad curring part dissenting part) in Indeed, our sister circuits that have con (“[I]t appropriate the bal consider question have concluded that sidered this interest, equities public ance of and the vacatur is permitted remand without along magnitude agency’s with the See, e.g., Cmtys. Against APA. Cal. they can errors and the likelihood that be v. 688 F.3d Toxics U.S. EPA cured.”). Among equities to be bal Cir.2012) curiam); (per Org. Nat’l Vet disruptive anced in this case are both Advocates, Sec’y Inc. v. erans’ Veterans consequences mining industry, (Fed.Cir. Affairs, 260 F.3d potential well as the environmental dam 2001); FERC, Cent. Me. Power Co. v. age might continue unabated while (1st Cir.2001); F.3d Cent. & S.W. revisits its determinations. We Servs., Inc. v. EPA reject Riverkeeper’s argument (5th Cir.2000); Allied-Signal, Inc. v. U.S. potential disruption industry mining Comm’n, Regulatory Nuclear 988 F.2d Here, suspend is irrelevant. vacatur could (D.C.Cir.1993). 146, 150 we do not While amount of substantial surface ... dispute ordinary that “vacatur is the Alabama, all an the state of error that remedy,” APA Sierra Ant Club Van may inconsequential. well turn out to be (Kravitch, J., werp, 526 F.3d at 1369 con Toxics, Cmtys. Against Cal. curring in part dissenting part), Cf. EPA (declining at 994 to vacate an emis neither can we conclude that it is the sions rule where vacatur would be “eco these, one. In circumstances like where it disastrous”). nomically we do While not agency’s is not at all clear that the error would, fact, conclude that vacatur incurably agency’s tainted the decision- determine whether remedy disruptive making process, of remand —nor surely appropriate. slight without error was conse- vacatur is We —such that, clearly suggestion relevant to a court’s has been quenees are made at least, very the the district court should balancing calculus. equitable suspend projects all reauthorizations for However, we to balance these hesitate filling yet begun. where activities have not instance, in the and without equities first all, observes, After the dissent the Interve- any guidance from the district court. only nors have offered evidence as to some briefing provides parties’ supplemental granted pursuant of the reauthorizations roughest this with the sketch of Court 21(a). to But this is precisely NWP the implications Corps’ the of the extent point. know, example, We don’t Indeed, suggested error. has projects whether the other are scheduled precise amount of waters of the future, operations to commence in the near impacted that will be could they’ve already United States or employ- whether hired ees and executed contracts on Corps’ reasoning, assump- be immaterial operations tion that will soon commence. rests, part, at least in on the use of colleague may right Our be NWP compensatory individual reverification and suspended can be as to operations these addition, mitigation. evaluating po- devastating without consequences to the consequences of vaca- tentially disruptive industry. mining may wrong. She also be may require fact-finding, tur additional court, however, It is the district is to particularly respect with the costs fine-grained best-suited to make these industry coal and the environmental harm fact-intensive determinations. As we’ve stream-filling, appellate that as an explained, position we take no on whether conduct, generally equipped we are not suspend the district court should or vacate largely let alone on this barren record. 21, in part. NWP whole or in Instead of See, Zant, e.g., Green v. 715 F.2d deciding question that difficult on an in- (11th Cir.1983) (“Fact finding is the basic record, complete we leave it to the sound courts, responsibility of the district rather court in discretion district the first courts.”). appellate Specifically, than the instance. mining we do not know whether the com- We, therefore, reverse the district panies will able to obtain individual be ruling court’s on the merits and remand permits expeditious in an fashion or following with the instructions. The dis operations can whether' their trict court shall remand the matter to the lim- redesigned to meet the new stream-fill thorough for a reevaluation of the (b). in paragraph We cannot discern in Corps’ CWA and NEPA determinations temporary suspension the effect of a data, light including of all of the relevant measured, mining operations, their for ex- Corps’ figure for the acre recalculated ample, layoffs, wages, unful- lost age of waters affected NWP 21. The filled contracts. Nor do we know whether may district court also determine whether 21, including the other terms of com- NWP relief, vacatur, including further is re pensatory mitigation, will suffice to ensure light er quired admitted impacts limited on the Black Warrior Riv- Lastly, ror. we are mindful of the need watershed, er whether these a decision as soon for the reach mitigated can if be reversed or reasonably practicable. as is Our view is later nullified. essential Without these sufficient for the year that one should be others, cannot determine facts and we fully reasoning Corps to reconsider equities weigh whether favor of in its 2012 21 Decision espoused In re: Tri- Document. vacating NWP 21. MDL-1824 Cf. Rights Litig., State standing Army Corps Engi- to sue the Water (11th Cir.2011) curiam) (impos- that the District erred in (per neers and Court one-year “[g]iven barring equitable time frame this suit on the basis of ing a extent, case, importance length of time laches. To that I concur [the] But I bouncing Majority opinion. respectfully been around the federal dis- ha[d] courts, Majority’s and the amount of resources the sent from the decision to re- already and the courts ex- mand without vacatur based on its deter- parties ha[d] say mination that “we cannot the- pended”). ultimate Corps’ conclusion—that NWP V. minimal will have effects—was unlawful.” I significance Corps’ think the of the error Accordingly, we hold that the district from plainly argu- is discernible counsel’s correctly Riverkeep- determined that statutory ment regulatory and re- standing er has to sue under the Adminis- quirements governing na- the issuance of Act, trative Procedure but that the district permits.1 tionwide concluding its discretion in court abused by Riverkeeper’s that suit was barred im- The underestimation of the actual Finally, laches. we reverse the district pacts to waters of the United States is merits, in judgment light court’s on the Corps’ central to the issue of whether the error, Corps’ belated admission of and minimal impacts determination was “arbi- Corps’ remand for reconsideration of the trary, capricious ... or otherwise not in new and NEPA determinations. CWA accordance with law.” 5 U.S.C. 706(2)(A). part, AFFIRMED in § REVERSED Corps’ The issuance of NWP part, and REMANDED with instruc- “fully based on its admitted failure to tions. potential impacts take into account the 21(a) by the activities authorized TOTENBERG, Judge, District grandfather provision dispute on [the concurring part dissenting part: im- appeal] concluding this when that the agree Majority’s I much of the pacts with of NWP would be minimal” vio- including § its determinations that 404 of opinion, lated the Clean Water Act (“CWA”).2 See 33 U.S.C. § Plaintiffs-Appellants have Article III 1344. Under Council, argument particular- Oral on this issue was Gas & Elec. Co. Nat’l Res. Def. Inc., 87, 97-98, ly revealing, supplemental more so than the 462 U.S. 103 S.Ct. Robertson, briefing Corps, (1983); glossed filed which L.Ed.2d 437 see also magnitude import of the error as regu over at 109 S.Ct. 1835. The NEPA potentially harmless. require that lations environmental assess impacts consider the "environmental ments alternatives,” 2. The Corps’ proposed decision based on this error also of the action and in Policy cluding impact.” violates the National Environmental "cumulative See 40 C.F.R. (NEPA) 1508.7-1508.9(b). ”require[s] agencies §§ Act While it true that the is may scope take a 'hard look’ at environmental conse Court not know the exact error, quences.” Valley crystal Corps' Robertson v. Methow Citi it clear is Council, projects 490 U.S. 109 S.Ct. failed to include reauthorized in its zens (1989) (internal quota impacts analysis required by 104 L.Ed.2d 351 as 40 C.F.R. omitted). determining § duty tion In an marks 1508.7. The Court therefore has a NEPA, agency’s compliance reviewing with set aside the action when it evades its agency obligation "adequately courts must "ensure that the has ade NEPA consider[] quately impact considered and disclosed the environ the environmental of its disclose[ ] Co., impact mental of its actions and that deci Balt. its actions.” Gas & Elec. 462 U.S. at arbitrary capricious.” sion is not Balt. 103 S.Ct. 2246. Because the failed CWA, Army Corps analysis § determined grandfathered 404 of the only (a) general permit authorized to issue a authorizations under paragraph would if are “similar in regulated activities not have more than minimal cumulative nature, only minimal will cause adverse “by examining effects from performed environmental effects when along those authorizations with the rest of separately, and will have minimal cu- the activities covered the 2012 NWP mulative adverse effect on the environ- 21,” i.e. activities authorized under the new 1344(e)(1); § ment.” 33 U.S.C. accord (b). restrictions in paragraph light of 230.7(a). 404(b) C.F.R. Guidelines the error discovered on the oral eve of require predict cumulative argument, the Corps has now abandoned by evaluating the of indi- effects number argument justification for per- fill discharges dredged vidual or materi- mit decision. expect- al into waters of the United States for Corps explained Counsel at oral general permit

ed to authorized argument the basis the error and how expires. until See 40 C.F.R. it occurred here. As explained, counsel 230.7(b)(3); 10,206. Fed.Reg. § 77 see also original the proposal for the reissuance of impacts analysis The minimal “must be only 21 included fill NWP the numerical completed permit before General is 230.7(b). (b) in imposed paragraph limits issued.” 40 C.F.R. “Under with no CWA, (a). of a permit grandfather provision, the issuance nationwide i.e. paragraph hinges reviewing agency’s finding on the Corps performed survey The of its dis- proposal only that a has cumu- ‘minimal potential impacts tricts to estimate under ” lative effect on the environment.’ adverse 21 solely based on the authorization Rowlette, Ky. 714 Riverkeeper, Inc. v. F.3d (b) projects paragraph of new under and (6th Cir.2013) 402, 412 (citing 33 U.S.C. in up resulting came with 305 activities 130 1344(e)(1) 230.7(a)(3)). § § and 40 C.F.R. grandfather provision acres. After the Thus, permit the issuance of a nationwide (a) paragraph regu- was added late § faulty unsup- 404 based on a latory permit process,3 Corps went ported impacts analysis minimal violates potential back to estimate the number of § 404 of the CWA. (a) paragraph authorizations under —esti- Corps argued projects update The mated as 70 failed to response to Plain- —but tiffs-Appellants’ permit challenge prior permit below its estimates on the use of the appeal survey. and on its minimal on the The impacts original acreage based comply regulations' important aspect problem, to with the NEPA re- er an offered quirements, Corps' I would vacate the reau- explanation an for its decision that runs coun- arbitrary capri- thorization of NWP 21 as agency, ter to the evidence before the or is so 706(2)(A). pursuant cious to 5 U.S.C. See implausible that it could not be to a ascribed Adm’r, U.S.E.P.A., Ala. Envtl. Council product agency difference in view or the of (11th Cir.2013) (setting aside expertise.”); Miccosukee Tribe Indians Agency's Environmental Protection action be- States, Fla. v. United according cause it was not conducted (11th Cir.2009) discussed infra. statutory procedures set forth in the Clean Air Act); see also Motor Vehicle Ass’n Mfrs. Corps grandfather 3. The did not include the Co., U.S. v. State Farm Mut. Auto. Ins. provision until after a December 2011 meet- 103 S.Ct. 77 L.Ed.2d 443 ing Management between the Office of (1983) ("Normally, agency an rule would be Association, Budget Mining and the National arbitrary capricious agency if the has public period after the on NWP 21 comment Congress relied on factors which has not in- April had closed consider, entirely tended it to failed to consid- why error —described in its required analysis letter strates must as an underestimation the total number take into acreage account the actual im- may impacted by of acres that NWP pacts. Corps explained, As the the basis merely a math 21—is not error. The compensatory mitigation require- for its By of the mistake is much broader. scope ment in impacts is offset failing to take into account that individual by requiring mitigation waters one acre of (a) paragraph activities reauthorized under every acre filled.4 Corps’ argu- The impact each could more than a half-acre of very ment is also belied terms of waters of the United States because general permit imposes the new (b)’s subject paragraph are not numeri- and 300 linear foot fill limits as 1/2-acre limits, cal fill failed to consider “necessary to ensure that au- NWP[21] impact the actual of reauthorizations is- thorizes those activities that have (a)’s paragraph grandfather sued under minimal individual and cumulative adverse impacts analysis. in its minimal provision aquatic effects on the environment.” As result, As a all reauthorizations issued un- Corps explained in the Decision Docu- (a) paragraph suspended. der should be ment, acreage new “[t]he and linear foot Corps’ why own assertions illustrate limits will ensure that this NWP contrib- faulty the issuance NWP based on its utes no more than minimal individual and impacts analysis arbitrary, minimal is ca- cumulative aquatic adverse effects to the and unlawful. At oral pricious, argument, environment, by limiting the amount of asserted the nature of the waters of the United States that can be determination of minimal filled each activity.” NWP 21 placed not reliant on the amount of fill in response Plaintiffs-Appellants’ ar- waters of the United States because the guments that the Court should consider its determination relies on the individual veri- differential treatment argument, the process fication and the use of compensa- in supplemental briefing asserts that tory mitigation. Corps’ The argument fill whether activities authorized under 404(e) § runs counter to of the CWA and (a) paragraph “will have a minimal cumula- 404(b) Guidelines, § require which given impact required tive compensa- Corps to consider in its minimal impacts tory mitigation a question is that necessar- analysis an evaluation of the number of ily underlying turns on the regarding facts discharges individual of dredged or fill ma- projects number of each paragraph terial into waters of the United States will authorize” and that “the expected projected im- general be authorized pacts until under the two See 40 C.F.R. permit expires. paragraphs it must be 230.7(b)(3). § analyzed cumulatively Yet even combined and reliance on com- to de- pensatory mitigation key full component impact termine the of the permit.” impacts analysis of its minimal demon- The projec- describes these factual however, efficacy 404(b) mitigation, 4. The of § is not ant to the CWA Guidelines. 43 Fed. 19,594; solely Reg. based on consideration seq. §§ of number see 40 C.F.R. 230.91 et impacted by permitted of acres objective compensatory activities. "The fundamental Rule, Compensatory Mitigation The 2008 mitigation is to offset environmental losses 9, 2008, provides resulting effect since June impacts that for from unavoidable to waters impacts compensato- § authorized under by [Army of the United States authorized ry mitigation 230.93(a)(1). Corps] permits.” § is not considered until after all 40 C.F.R. appropriate practicable steps necessary have been The compen- determination of the taken satory mitigation to first and then avoid minimize ad- is based on host of differ- impacts aquatic ecosystem verse to the pursu- § ent factors. See 40 C.F.R. 230.93. integral component of the cu- an explanation tions as an “offered for its deci analysis. Corps’ The er- impacts mulative sion that runs counter to the evidence subsequent argument ror and illustrate agency” by before the underestimating— impacts analysis the minimal was reality or in not individually assessing— entirely projected impacts on the based impacts to waters of the United States paragraph authorizations issued under in its minimal impacts analysis. Agen Id. (b)’s fill limitations and failed to ac- new cy decisions should be set aside under the projects count for from reauthor- arbitrary capricious APA’s standard (a) that not paragraph ized under are sub- procedural “for substantial or substantive ject fill limits. reasons as mandated statute.” N. Buck permit issuance of the Skinner, head Civic Ass’n v. type precise these circumstances is the Cir.1990) 1538-39 (quoting Vt. subject agency action to the Administra- Corp. Yankee Nuclear Power v. Nat. Res. (“APA”) arbitrary tive Procedures Act’s Council, Inc., 435 U.S. Def. capricious standard. See U.S.C.A. (1978)). S.Ct. 55 L.Ed.2d 460 As no 706(2)(A) (compelling reviewing impact analysis actual performed by was agen- court to “hold unlawful and set aside Corps prior to its authorization pro action, cy findings, and conclusions found jects pursuant grandfather provision arbitrary, capricious, to be ... an abuse of 21(a), suspend this Court should discretion, or otherwise not in accordance the 41 reauthorizations issued law”). agency arbitrary An action with is 21(a) Corps under NWP at least until the capricious: analy Corps actually performs required agency where the has relied on factors sis.5 Congress has not intended it to Contrary to the doomsday Intervenors’ consider, entirely failed to an consider assertions, suspension or vacatur of NWP important aspect problem, offered halting would not result in the all explanation an for its decision that runs mining operations the Black Warrior agen- counter to the evidence before the River watershed. 21 is not a cy, implausible or is so that it could not permit; a permit authorizing be ascribed to difference view or the certain product agency expertise. of filling stream activities in association with mining operations. oper- Intervenors can Miccosukee Tribe Indians Fla. v. of ate and conduct stream filling activities States, United mining operations associated with their Cir.2009) (quoting Ala.-Tombigbee Rivers 21(b) under the new restrictions in NWP Kempthorne, Coal. v. (11th Cir.2007)). can permits seek individual Corps “entirely § contemplated recognized 404 as important aspect failed to consider an Decision Document. The problem,” impacts of reauthoriza- —the grandfather expressly tions under the provision “acknowledge^] impacts analysis. limit, cumulative reissuing Id. The NWP with 1/2-acre Corps’ request agen- 5. The for remand to the individual without consideration of cy perform without vacatur so that can component analysis, an essential of the data analysis required prior that was of it argues presume we now should no envi- general permit presents issuance of the "a nearly years ronmental harm after three problem. cart before the horse” In its issu- filling authorized activities allowed dint of ance of NWP assumed there agency's clear error. were no more than minimal cumulative or limit 300 linear foot loss of stream Christopher BROPHY, Lewis,

bed, Tara authorizing discharges and not Plaintiffs-Appellants, fill material into dredged or waters of the fills, valley United States to construct will mining result in more surface coal activi- PHARMACEUTICALS, INC., JIANGBO requiring ties Clean Act Section Water Linxian, Sung, Ziling Sun, Jin Elsa Otherwise, permits.” 404 individual allow- Wubo, al., Defendants-Appel Cao et ing projects proceed pursuant to reau- lees. (a) paragraph thorizations issued under vi- 404(e) very olates the substance of No. 14-10213.

the CWA.6 Appeals, United States Court of minimum, At a the District Court on Eleventh Circuit. suspend all remand should authorizations projects filling for those for which no activ- March yet begin. proceedings ities have In the below,

before district Interve- specific

nors offered evidence as to only 22 out of the 41

operations at mines 21(a)

authorized under NWP in the Black pointed River watershed. As out

Warrior Plaintiffs-Appellants’ underlying briefs

and confirmed counsel for Intervenors argument, good

at oral number of the 21(a)

mines reauthorized under are yet begun filling

either idle or have not Thus, permitted

activities area. no argument

viable can be made that vacatur disruptive

would have effects on mines

that are either not operating or have not begun

yet filling pursuant activities

their reauthorizations. reasons, respectfully

For these I dissent

in part. noteworthy many It of the statutory goals op cases from tent with the at issue as Appeals the United States Court of for the posed presented to the circumstances in this (involving District of Columbia Circuit envi- filling case where activities will be allowed to challenges) ronmental administrative that de- EPA, continue. See North Carolina v. grant engaging cline to vacatur after in a (D.C.Cir.2008); 1177-78 Ne. Md. balancing equities arise in contexts EPA, Disposal Waste Auth. v. agency's where the enforcement of environ- (D.C.Cir.2004). protections pending mental remand is consis-

Case Details

Case Name: Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 23, 2015

Citation: 781 F.3d 1271

Docket Number: 14-12357

Court Abbreviation: 11th Cir.